They are be­hind bars, be­cause ig­no­rance of the law is no de­fence

Daily Nation (Kenya) - - DN2 -

it was di­rected that in­ves­ti­ga­tions be car­ried out, dur­ing which I was taken to In­dus­trial Area Re­mand as in­ves­ti­ga­tions con­tin­ued,” he says. He was locked up for 16 months.

A doc­tor’s re­port later re­vealed that in­deed, the girl had sex with a man, but could not cat­e­gor­i­cally de­ter­mine if the man was Muri­ungi.

Even so, he was in­formed that he still had a case to an­swer for be­ing in a re­la­tion­ship with an un­der-age girl, and his pleas that he did not know that she was a stu­dent, un­der-age and sick, fell on deaf ears. They said he should have probed his girl­friend first to know her well.

On De­cem­ber 7, 2017, judg­ment was de­liv­ered and Muri­ungi, 33, was charged with hav­ing a re­la­tion­ship with an un­der-age, with­out in­ves­ti­gat­ing to know more about her. He was handed a 10-year jail sen­tence with the op­tion to ap­peal.

“I was charged with at­tempted de­file­ment as she was below 18 years. She had a ma­ture-look­ing body, so it was hard to tell if she was un­der-age,” says Muri­ungi, whose ini­tial in­car­cer­a­tion in In­dus­trial Area medium prison ended up in Nairobi West Prison a week later.

A child pro­tec­tion re­port re­leased on March 28, 2017 by Child­line Kenya, a non-gov­ern­men­tal or­gan­i­sa­tion that runs a child abuse helpline, re­vealed that 33,929 cases of child abuse have been re­ported in the last 10 years in Kenya with Nairobi County hav­ing the high­est num­ber of re­ported cases of all forms of child abuse.

The re­port, which an­a­lysed cases re­ported from 2006 to 2016, said that of the to­tal num­ber of child abuses, 7,832 were sex­ual abuse, al­most 20 per cent of the to­tal.

Lawyer Cliff Om­beta ex­plains that at­tempted de­file­ment is try­ing to pen­e­trate the pri­vate parts of an un­der-age us­ing your own or­gan and one can­not use the ig­no­rance of not know­ing one’s age as an ex­cuse as it is im­ma­te­rial whether one knew the age of the girl be­fore hav­ing in­ter­course with her, as the bur­den of proof lies on the man.

“It is the man’s duty to ver­ify the age of the girl be­fore en­gag­ing in any sex­ual in­ter­course. The bur­den of proof shifts to the man be­cause he has to prove that he un­suc­cess­fully did ev­ery­thing pos­si­ble to as­cer­tain the age of the girl be­fore­hand,” Mr Om­beta says.

Fake iden­tity card

The lawyer adds that the only ex­cuse that the man can use is that he tried to prove the age but the girl lied to him about her age and even pre­sented a fake iden­tity card to prove oth­er­wise.

He states that the sen­tence for such an act varies and can be be­tween 10 and 20 years with the judg­ment de­pend­ing on any of the fol­low­ing laws: The Chil­dren’s Act, Sex­ual Of­fences Act and the Pe­nal Code.

“The sen­tence varies de­pend­ing on how one de­fends him­self, but should not be less than the min­i­mum and also not even a day more than the max­i­mum sen­tence.”

The Sex­ual Of­fences Act (2006) pro­vides ex­haus­tive def­i­ni­tions of child sex­ual abuse in Kenya, in­clud­ing sex­ual con­tact with un­mar­ried girls be­fore age 16 and boys be­fore age 12, traf­fick­ing, de­file­ment, forced mar­riage, and in­cest.

The Act crim­i­nalises any per­son, in­clud­ing a ju­rist ac­cused of child traf­fick­ing or be­ing in­volved in child sex tourism, child pros­ti­tu­tion, or child pornog­ra­phy.

On the other hand, the Chil­dren’s Act, 2001, de­fines a child as any­one un­der the age of 18 years, and en­ti­tles chil­dren to pro­tec­tion from all forms of vi­o­lence and abuse.

He men­tions that the girl’s mother tried to drop the case, but was told it was not pos­si­ble as it was al­ready in court.

Re­la­tion­ship ex­pert Jen­nifer Ka­rina ad­vises that be­fore get­ting into a re­la­tion­ship with any­one, find out all you can about them, de­pend­ing on the type of re­la­tion­ship you in­tend to have with them.

“Say­ing that you did not know some­one’s age is naive. It is im­por­tant to know whether the per­son you in­tend to date is a child or a grown up,” she says.

Ms Ka­rina says that fail­ing to carry out due dili­gence should be pun­ished es­pe­cially if it in­volves un­der-age per­sons as such re­la­tion­ships ruin mi­nors’ lives.

“How do you en­gage in­ti­mately with some­one you do not know? They de­serve no mercy be­cause they ruin the lives of the young girls.”

The Sex­ual Of­fences Act out­lines penal­ties for child sex­ual abuse, in­clud­ing im­pris­on­ment and fines with no le­gal re­dress for com­plainants but Muri­ungi’s elder brother, Nuru Kithinji, is pray­ing to God to en­sure jus­tice is done, main­tain­ing that his brother did noth­ing wrong.

“He will be locked up for the next six years, that is, un­til Au­gust, 2024 for just be­ing in a re­la­tion­ship with a girl. We are ap­peal­ing to the gov­ern­ment, if pos­si­ble, to help re­lease the boy as the charges are not true.”

He says that Muri­ungi left Meru in 2013 to Nairobi and was liv­ing with their mar­ried sis­ter, but after she re­lo­cated to Ki­tale, the fam­ily lost touch with him. They had been in the dark about his where­abouts ever since, to the ex­tent that they be­lieved he had died.

It was not un­til Sun­day, April 22, 2018 when the fam­ily was in­formed of the 33-year-old’s where­abouts by a source Kithinji was not will­ing to men­tion as the in­for­ma­tion was con­fi­den­tial. The source also in­formed them about prison open days.

They met him on April 26, 2018 for the first time since he was locked up.

“We have suf­fered a lot look­ing for Muri­ungi. Our mother went into de­pres­sion be­cause of this case. We are happy to have found him alive. This is our first meet­ing with him since 2013 when he came to Nairobi from Meru,” Mr Kithinji said.

Newspapers in English

Newspapers from Kenya

© PressReader. All rights reserved.